Vol. XVI, No. 1
Significant New Decisions
Pollack v. Department of Justice, No. 93-2025 (4th Cir. Mar. 10, 1995).
In a decision clarifying the responsibilities of both agencies and requesters, the Court of Appeals for the Fourth Circuit held that while agency disclosures made after litigation commences do not revive the requester's obligation to administratively appeal, the agency's failure to respond before the filing of the FOIA suit in no way negates the requester's obligation to pay fees. The requester filed suit after waiting nearly a year without a response to his request for records concerning his criminal convictions for conspiracies involving mail fraud, wire fraud and embezzlement. Following the processing of responsive material, the district court dismissed the action based on the requester's failure to administratively appeal the several releases made after the litigation had commenced, and due to his refusal to pay duplication fees. Rejecting the first ground for dismissal, the Fourth Circuit held that so long as a requester had constructively exhausted his administrative remedies by waiting ten -- or in some cases twenty -- working days, the court was not thereafter "deprived of jurisdiction" because he failed to administratively appeal releases ultimately made during litigation. On the second issue, the Fourth Circuit affirmed the dismissal of the action for nonpayment of fees, squarely rejecting the requester's novel and unfounded argument that the lack of a timely agency response to his request relieved him of his responsibility to pay duplication fees.
Chemical Waste Management, Inc. v. O'Leary, No. 94-2230 (D.D.C. Feb. 28, 1995).
In a key decision interpreting Exemption 4, United States District Court Judge Norma Holloway Johnson held that unit prices in a government contract are "required" rather than "voluntary" submissions under the D.C. Circuit's Critical Mass decision and therefore must be analyzed under National Parks' competitive harm test. The ruling came in a "reverse" FOIA suit brought by the successful bidder for a hazardous waste management and disposal services contract for the Department of Energy's Savannah River site. Seeking to be judged under Critical Mass's "less stringent test," the submitter urged that "it should be considered a voluntary provider of information to DOE because
Strout v. United States Parole Comm'n, 40 F.3d 136 (6th Cir. 1994).
In a case of first impression, the Court of Appeals for the Sixth Circuit held that an agency's regulation requiring payment of fees before release of already-processed records did not violate the FOIA's prohibition against requiring advance payment. The requester, a federal prisoner serving thirty years for murder in a national park, sought access to his Parole Commission records and, after they were processed, was advised that in "accordance with departmental regulations, you are required to pay all applicable fees before the requested records are released to you." The requester contended that the agency's demand for payment before release of records was unlawful under the statute and that the agency's distinction between fees for already-processed records and an advance payment -- i.e., a payment made before work is commenced -- was a "distinction without a difference." In interpreting the admonition that "[n]o agency may require advance payment of any fee," 5 U.S.C.
Dow Jones & Co. v. United States Dep't of Justice, No. 94-0527 (S.D.N.Y. Jan. 5, 1995).
In a difficult Exemption 7(C) case concerning survivors' privacy, United States District Court Judge Sonia Sotomayor prohibited the Department of Justice "from withholding circulation" of copies of a handwritten, torn-up note retrieved from Deputy White House Counsel Vincent Foster's briefcase after his suicide. The agency made available a typed transcript of the note, and allowed anyone to view a copy of the original note in Washington, D.C., but argued that publicly circulating the note would unjustifiably invade the Foster family's privacy. Judge Sotomayor recognized that the family would suffer "pain
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